circuit judge Carl McGowan 1974–75 Clerked for Justice Thurgood Marshall 1975–83 Held professorship at Harvard Law School 1983–84 and 1985–86 Served as deputy assistant attorney general
Trang 1Republicans maintained control over Con-gress in the 1996 and 1998 elections, but the margin of the majority following the 1998 elections was the narrowest in more than 30 years Fellow Republican members of Congress largely blamed Gingrich for the difficulties during the elections Amid increasing dissen-sion, Gingrich resigned both as the Speaker of the House and as a representative in 1999
After he left politics, Gingrich founded the Gingrich Group, a communications and man-agement consulting firm based in Atlanta In
2003 he founded the Center for Health Transformation, described as a collection of private and public sector leaders dedicated to a twenty-first-century intelligent health system
In 2007 Gingrich founded American Solutions for Winning the Future, a nonprofit organiza-tion dedicated to developing soluorganiza-tions to America’s challenges and mobilizing the grass-roots energy to implement them Gingrich serves as chair of the organization and also as a senior fellow for both the American Enterprise
INSTITUTEin Washington, D.C., and the Hoover
INSTITUTION at Stanford University In 2001 he was named a distinguished visiting scholar
at the National Defense University He has served as a political analyst in the media and is generally recognized for his expertise in such areas as world history, military issues, and international affairs
Gingrich has written 13FICTIONand nonfic-tion books since leaving office, including the New York Times best sellers Winning the Future (2005) and Real Change (2008), and the best-selling active history novels Gettysburg (2003), Pearl Harbor (2007), and Days of Infamy (2008)
He resides in Virginia with his third wife, Callista, who serves as the president of Gingrich Productions
FURTHER READINGS Gingrich, Newt 2008 Real Change: From the World That Fails to the World That Works Washington, D.C.:
Regnery Publishing, Inc.
——— 2006 Rediscovering God in America Franklin, TN:
Integrity House.
——— 2005 Winning the Future: A 21st Century Contract with America Washington, D.C.: Regnery Publishing, Inc.
——— 1995 To Renew America New York: HarperCollins.
Gingrich, Newt, with David Drake and Marianne Gingrich.
1984 Window of Opportunity Tom Doherty Associates.
Gugliotta, Guy, and Juliet Eilperin 1998 “Gingrich Steps Down in Face of Rebellion.” Washington Post (November 7).
“The Long March of Newt Gingrich.” PBS: Frontline Available online at http://www.pbs.org/wgbh/pages/ frontline/newt; website home page: http://www.pbs org (accessed July 26, 2009).
1995–1996 Official Congressional Directory, 104th Congress.
1995 Washington, D.C.: U.S Government Printing Office.
Wilkins, David 1991 “Newt Gingrich.” Newsmakers 1991 Edited by Louise Mooney Detroit: Gale Research.
CROSS REFERENCES Contract with America; Election Campaign Financing.
GINNIE MAE SeeGOVERNMENT NATIONAL MORTGAGE ASSOCIATION
vGINSBURG, DOUGLAS HOWARD Douglas Howard Ginsburg became the chief judge of the U.S Court of Appeals for the
DISTRICT OF COLUMBIAin 2001 after serving as an associate judge since 1986 In 1987 his nomina-tion to the SUPREME COURT OF THE UNITED STATES
was derailed by questions about his inexperi-ence and about his personal life
Ginsburg was born May 25, 1946, in Chicago
He grew up in Chicago, where he graduated from the prestigious Latin School in 1963 After high school, he entered Cornell University, in Ithaca, New York, but he left college in the mid-1960s to open the nation’s first computerized dating service After achieving success with the company, which was named Operation Match, Ginsburg sold his interest and returned to Cornell, earning his bachelor’s degree in 1970 From there, he went to the University of Chicago Law School, where he received his doctor of
JURISPRUDENCEdegree in 1973
Ginsburg served as a law clerk to U.S circuit judge Carl McGowan from 1973 to 1974, and to JusticeTHURGOOD MARSHALL, of the U.S Supreme Court, from 1974 to 1975 In 1975 he became
an assistant professor of law at Harvard Law School, and in 1981 he was promoted to the rank of professor He left academia to become a deputy assistant attorney general for regulatory affairs in the U.S DEPARTMENT OF JUSTICE, Antitrust Division, in 1983 A year later he was appointed administrator for information and regulatory affairs of the OFFICE OF MANAGE-MENT AND BUDGET, where he served for one year before returning to the Antitrust Division of the
JUSTICE DEPARTMENT in 1985 In 1986 President
RONALD REAGAN named him a judge of the U.S
98 GINNIE MAE
Trang 2Court of Appeals for the District of Columbia
Circuit
At this point in his career, Ginsburg seemed
to be settling into a predictable future on the
FEDERAL bench But there was to be a short
detour along the way In 1987, to the surprise of
almost everyone, Reagan nominated him to
replace retiring Justice Lewis F Powell Jr on the
U.S Supreme Court
Ginsburg’s nomination followed months of
intense, sometimes acrimonious questioning by
theSENATE JUDICIARY COMMITTEE of Judge ROBERT
H BORK, Reagan’s first nominee During these
hearings, the Senate had departed from its
traditional advice-and-consent role and closely
questioned Bork on philosophical and doctrinal
matters never before addressed in confirmation
proceedings Bork had a long paper trail, with
years of scholarly writings that revealed him to
be a strict, conservative constructionist on
CONSTITUTIONAL matters, just the type of Justice
Reagan wanted on the Court to carry his vision
of judicial restraint into the next century
However, members of the Senate, openly
concerned with his conservative political
ideol-ogies, eventually rejected Bork’s nomination
Stung by the Senate’s rejection of Bork,
Reagan and his aides were determined to find a
nominee who would fulfill their requirement of
judicial restraint but who had no“history” that
would make their choice vulnerable to attack
They thought they had just the person they
needed in Ginsburg and, although Ginsburg
had less than a year’s experience as a judge,
Reagan nominated him for the vacancy
Ginsburg’s nomination ran into difficulty almost immediately Senators raised the obvious issues of his youth and inexperience and voiced concern about how his scanty judicial record made him a tabula rasa on constitutional matters A conflict-of-interest question was raised when newspapers reported that at the Justice Department he had handled a major case involving the cable TV industry while he held a
$140,000 INVESTMENT in a Canadian cable TV company Then, too, it began to look as if he might be opposed by some conservatives
Douglas Ginsburg.
MARK WILSON/ NEWSMAKERS/GETTY IMAGES
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1946 Born,
Chicago, Ill.
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1950–53
Korean War
1961–73 Vietnam War
1970 Graduated from Cornell University
1973 Earned J.D from University of Chicago Law School 1973–74 Clerked for U.S circuit judge Carl McGowan 1974–75 Clerked for Justice Thurgood Marshall
1975–83 Held professorship at Harvard Law School
1983–84 and 1985–86 Served as deputy assistant attorney general in DOJ
1988 Joined George Mason University School
of Law as distinguished adjunct professor
1987 Nominated to U.S Supreme Court by Reagan, withdrew his name
1986 Appointed to U.S Court of Appeals for the District of Columbia
1984–85 Served as administrator in the OMB
1999 Voted with majority in overturning EPA Clean Air Act
health regulations, American Trucking Assn v EPA
2008 Resigned
as chief judge; remained on court
2001 Named chief judge
of U.S Court of Appeals for the District of Columbia
2002 Wrote majority opinion removing federal limits on commercial mass media ownership,
Fox Television Stations v FCC
◆
GINSBURG, DOUGLAS HOWARD 99
Trang 3because his wife, a physician, had reportedly performed some abortions The death knell for Ginsburg’s nomination sounded when he admitted that he had smoked marijuana “on a few occasions” while he was a student and during his early days on the faculty at Harvard
Faced with the embarrassment of backing a nominee who had admitted illicit drug use, the White House dispatched Secretary of Educa-tion William J Bennett to urge Ginsburg
to withdraw his name from consideration
Ginsburg complied, issuing a statement in which
he said that the scrutiny of his personal life would continue to draw attention away from more relevant questions.“My views on the law and on what kind of Supreme Court justice I would make have been drowned out in the clamor,” he stated He commended Reagan and his wife, Nancy Reagan, for “leading the fight against illegal drugs,” adding, “I fully support their effort and I hope that the young people of this country, including my own daughters, will learn from my mistake and heed their message.”
The swift and unfortunate DEMISE of Ginsburg’s nomination was a sobering lesson for the Reagan administration The president reacted by nominating an experienced and uncontroversial moderate, Judge ANTHONY M
KENNEDY, who was quickly and easily confirmed
Many feel that the Senate’s handling of the Bork and Ginsburg nominations set a precedent for later investigations of presidential appointees and established a breadth and depth of scrutiny that some say are outside the scope allowed by the Constitution The Senate continued its method
of scrutiny with CLARENCE THOMASin 1991
After his withdrawal, Ginsburg returned to his position on the District of Columbia Circuit
In July 2001, after serving as an associate judge for nearly 15 years, he ascended to the position of chief judge, which he held until February 2008
As of 2009 he is still serving on the court as a judge, but David E Sentelle has taken over as chief Ginsburg has also maintained an active interest inLEGAL EDUCATION, serving as a part-time instructor at Harvard University, Columbia University, the University of Chicago, andGEORGE MASONUniversity in Virginia He teaches courses
in antitrust, administrative law, and jurispru-dence In addition, Ginsburg is the author of numerous legal casebooks and other texts, focusing primarily upon antitrust and economic regulation
Ginsburg is married to Hallee Perkins Morgan Ginsburg, and has three children
He is a member of the Illinois State BAR ASSOCIATION, the Massachusetts State Bar Associ-ation, the American Economic AssociAssoci-ation, and the Honor Society of Phi Kappa Phi Ginsburg
is also an honorary member of the District of Columbia Bar Association
FURTHER READINGS Groner, Jonathan 2001 “Edwards Passing the Torch.” Legal Times (June 11).
Krauthammer, Charles 1987 “The Ginsburg Test: Bad Logic ” Time (November 23).
vGINSBURG, RUTH BADER
RUTH BADER GINSBURG was appointed ASSOCIATE JUSTICE of the U.S Supreme Court in 1993 Ginsburg was the first person nominated to the Court by PresidentBILL CLINTON, filling the vacancy created by the retirement of JusticeBYRON R.WHITE
As an ATTORNEY prior to her appointment, Ginsburg won distinction for her advocacy of women’s rights before the Supreme Court Ginsburg was born March 15, 1933, in Brooklyn, daughter of Nathan Bader, a furrier and haberdasher, and Celia (Amster) Bader Ginsburg attended New York public schools and then Cornell University She married Martin Ginsburg after graduating from Cornell
in 1954, and gave birth to a daughter, Jane Ginsburg, before entering Harvard Law School
in 1956 Ginsburg was an outstanding student and was elected president of her class at the prestigious Harvard Law School After her second year, she transferred to Columbia Law School, following her husband, who had taken a position with a New York City law firm Ginsburg was elected to the Columbia LAW REVIEWand graduated first in her class She was admitted to the New York bar in 1959 Despite her academic brilliance, New York law firms refused to hire Ginsburg because she was a woman She finally got a position as a law clerk to a FEDERALdistrict court judge In 1961 Ginsburg entered the academic field as a research associate at Columbia Law School In
1963, she joined the faculty of Rutgers Univer-sity School of Law, where she served as a professor until 1972
In 1972 Ginsburg’s career shifted to that of
an advocate As the director of the Women’s Rights Project of the AMERICAN CIVIL LIBERTIES UNION, she developed and used a strategy of
PRINCIPLE OF OUR
SYSTEM OF CRIMINAL
LAW THAT THE FACTS
ARE SETTLED BY THE
AND ARE NOT
ORDINARILY TO BE
DETERMINED BY A
—D OUGLAS G INSBURG
100 GINSBURG, RUTH BADER
Trang 4showing that laws that discriminated between
men and women were often based on
stereo-types that were unfair to both sexes In the early
to mid-1970s, Ginsburg argued six women’s
rights cases before the U.S Supreme Court,
winning five of them
FRONTIERO V.RICHARDSON, 411 U.S 677, 93 S
Ct 1764, 36 L Ed 2d 583 (1973), illustrates the
type of cases Ginsburg argued before the Court
In Frontiero, a female Air Force officer
success-fully challenged statutes (10 U.S.C.A §§ 1072,
1076; 37 U.S.C.A §§ 401, 403) that allowed a
married serviceman to qualify for higher housing
benefits even if his wife was not dependent on his
income, while requiring a married servicewoman
to prove her husband’s dependence before
receiving the same benefit The Supreme Court
voted 8–1 to overturn the law
President JIMMY CARTERappointed Ginsburg
to the U.S Court of Appeals for theDISTRICT OF
COLUMBIA Circuit in 1980 In this position
Ginsburg proved to be a judicial moderate,
despite her reputation as a women’s rights
advocate She supported a woman’s right to
choose to have anABORTION, but disagreed with
the framework ofROE V.WADE, 410 U.S 113, 93
S Ct 705, 35 L Ed 2d 147, the 1973 decision
that gave women that right She generally sided
with the government in criminal cases, but
supportedCIVIL RIGHTS issues She was a model
of judicial restraint, preferring legislative
solu-tions to social problems, instead of judge-made
solutions
President Clinton nominated Ginsburg to the Supreme Court in 1993, and she was easily confirmed Her tenure on the High Court has been consistent with her service on the court of appeals She has remained a judicial moderate with a strong emphasis on protecting civil rights In UNITED STATES V VIRGINIA, 518 U.S
515, 116 S Ct 2264, 135 L Ed 2d 735 (1996), Ginsburg wrote the majority opinion, which ordered the all-male Virginia MilitaryINSTITUTE
(VMI) to admit women or give up state
Ruth Bader Ginsburg.
STEVE PETTEWAY, COLLECTION OF THE SUPREME COURT OF THE UNITED STATES
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2003 Wrote majority opinion upholding Congressional authority to extend copyright limits in
Eldred v Ashcroft
1980–93 Served
on the U.S Court
of Appeals for the District of Columbia
1963–72 Held professorship at Rutgers University School of Law
1973 Argued Frontiero v Richardson
before U.S Supreme Court
1954 Graduated from Cornell University
1959 Graduated first in class from Columbia Law School; admitted
to N.Y bar
1933 Born Ruth
Bader, Brooklyn, N.Y.
1950–53 Korean War
1961–73 Vietnam War
1981 Sandra Day O'Connor became first woman
appointed to U.S Supreme Court
1993 Named associate justice of U.S Supreme Court
1996 Wrote majority opinion in United States v Virginia, which ordered VMI to
admit women or give up state funding
2000 Presidential election result uncertain due to disputed Fla vote count; recount halted by U.S Supreme
Court with 5–4 vote in Bush v Gore
2009 Denied request to stay order releasing court documents
in abuse case Rosado v Bridgeport Roman Catholic Diocesan Corp.
2002 Wrote majority
opinion in Ring v Arizona; held only
juries, not judges, can impose death penalties
2000 Wrote dissenting opinion in Bush v Gore
1999 Wrote majority opinion in landmark Olmstead v L.C.
1972–80 Served
as director of ACLU's Women's Rights Project
1972 Became first woman to hold full tenured professorship at Columbia Law School
◆
GINSBURG, RUTH BADER 101
Trang 5funding This decision also affected the Citadel, South Carolina’s state-run all-male military school, and was a decisive blow to state-sponsoredSEX DISCRIMINATION Ginsburg rejected
a proposal by VMI that it establish a separate military program for women Such a program would be unequal, Ginsburg concluded, because
it would rely on stereotypes about women and would not provide an equal education She stated, “Women seeking and fit for a VMI-quality education cannot be offered anything less under the state’s obligation to afford them genuinely equal protection.”
Ginsburg has written for the majority in nearly 100 opinions One of her most far-reaching opinions was theINTELLECTUAL PROPERTY
case of New York Times v Tasini, 533 U.S 483,
121 L Ed 2d 2381, 150 L Ed 2d 500 (2001)
The Tasini opinion upheld a 1999 federal appeals court decision, which found that the New York Times Company and its codefen-dants had violated the copyrights of Tasini and five other freelance writers by reproducing their work online on their own websites, and through subscription databases such as Lexis-Nexis Ginsburg’s opinion states that publishing the same article in print and on electronic formats are separate publishing events for purposes of COPYRIGHT law Consequently, the authors should be compensated for each publishing event The suit was brought forward
by freelance writers who complained that their work was posted on theINTERNETwithout their permission and, in some cases, earned extra revenue for publishers who sold access to the archived material
Ginsburg also has contributed nearly 40 dissenting opinions, including a strong DISSENT
to the majority opinion inBUSH V.GORE, 531 U.S
98, 121 S Ct 525, 148 L Ed 2d 388 (2000) The Bush opinion played a primary role in deter-mining the outcome of the 2000 election in favor of GEORGE W BUSH Ginsburg’s dissent in the Bush case rested on the notion that “federal courts [should] defer to state high courts’
interpretations of their state’s own law.”
Justice Ginsburg holds honorary degrees from a number of institutions, including American University, Hebrew Union College, Amherst College, and Georgetown University
She has also been an active BAR ASSOCIATION
member, serving on the Board of Editors of the AMERICAN BAR ASSOCIATION journal, and as
secretary, board member, and executive com-mittee member of the American Bar Founda-tion In addition, Ginsburg is a well-respected author and editor, writing on such topics as conflict of laws, CONSTITUTIONAL LAW, and CIVIL PROCEDURE
In 2005 Ginsberg wrote the majority deci-sion in a 6–3 Supreme Court RULING that protectsLEGAL AID for poor defendants that are convicted but want toAPPEAL
In 1999, at the age of 66, Justice Ginsburg was diagnosed with colorectal cancer She received radiation and chemotherapy treat-ments, and underwent surgery in September
1999 Upon recovery, she returned to her duties
on the bench On February 5, 2009, she underwent surgery related to pancreatic cancer Ginsburg’s tumor was discovered at an early stage, and expert medical opinions have been optimistic about her recovery
Since joining the Court, Ginsburg has supported gender equality, separation of church and state and workers rights, opposed property rights expansion, and moved to protect workers against overzealous prosecutors more often than a majority of her colleagues
FURTHER READINGS Baugh, Joyce Ann, et al 1994 “Justice Ruth Bader Ginsburg:
A Preliminary Assessment ” University of Toledo Law Review 26 (fall).
Washington Post (September 20).
Campbell, Amy Leigh 2004 Raising the Bar: Ruth Bader Ginsburg and the ACLU Women’s Rights Project Bloomington, IN: Xlibris Corporation.
Kay, Herma Hill 1999 “Equal Treatment: In the 1970s, Ruth Bader Ginsburg Sought to Do Something Radical: Level the Legal Playing Field for Men and Women.” American Lawyer 21 (December).
Kushner, James A 2003 “Introducing Ruth Bader Ginsburg and Predicting the Performance of a Ginsburg Court ” Southwestern University Law Review 32 (spring).
O ’Connor, Karen, and Barbara Palmer 2001 “The Clinton Clones: Ginsburg, Breyer, and the Clinton Legacy ” Judicature 84 (March-April).
GITLOW V NEW YORK Gitlow v New York, 268 U.S 652, 45 S Ct 625,
69 L Ed 1138, is a 1925 decision by the Supreme Court that upheld the constitutionality
of criminal anarchy statutes
The DEFENDANT, Benjamin Gitlow, was a member of the Left Wing Section, a splinter group of theSOCIALIST PARTY The group formed
in opposition to the party’sDOMINANT policy of
FIGURES OF THE
HAVE BEEN
INDEPENDENT
THINKING
INDIVIDUALS WITH
OPEN BUT NOT EMPTY
WILLING TO LISTEN
—R UTH B ADER
G INSBURG
102 GITLOW V NEW YORK
Trang 6“moderate socialism,” and criticized the party
for its insistence on introducing SOCIALISM
through the legislative process The Left Wing
Section advocated change through militant and
revolutionary means It viewed mass industrial
revolution as the mechanism by which the
parliamentary state would be destroyed and
replaced by a system of communist socialism
Gitlow was responsible for publishing and
disseminating the group’s views He did so
in such pamphlets as the “The Left Wing
Manifesto.” The manifesto was also published
in The Revolutionary Age, the official paper of
the Left Wing The opinions expressed in these
publications formed the bases for the
defen-dant’s convictions under Sections 160 and 161
of the penal law of New York, which were the
criminal anarchy statutes
Section 160 defined criminal anarchy and
prescribed that the verbal or written advocacy of
the doctrine be treated as aFELONY Section 161
delineated the conduct that constituted the
crime of advocacy of criminal anarchy and
stated that its punishment be IMPRISONMENT, a
fine, or both The proscribed conduct consisted
of the verbal or written advertisement or
teaching of the duty, necessity, or propriety of
overthrowing organized government by
vio-lence, ASSASSINATION, or other unlawful acts A
person was also prohibited from publishing,
editing, knowingly circulating, or publicly
displaying any writing embodying this doctrine
There was a two-count INDICTMENT against
Gitlow The first charged that the defendant had
advocated, advised, and taught the duty,
neces-sity, and propriety of unlawfully overthrowing
organized government through “The Left Wing
Manifesto.” The second count charged that he
had printed, published, knowingly circulated,
and distributed The Revolutionary Age,
contain-ing the writcontain-ings set forth in the first count
advocating the doctrine of criminal anarchy
In hisAPPEAL, Gitlow argued that Left Wing
publications had resulted in no real action
Because they were merely utterances, he
con-tended that the New York state laws violated the
right of free speech protected by the FIRST
AMENDMENT In sustaining the defendant’s
CON-VICTION, the U.S Supreme Court assumed that
the Due Process Clause of the FOURTEENTH
AMENDMENTprevented the states from impairing
the freedoms guaranteed by the First
Amend-ment The Court also noted that the statutes did
not penalize the “utterance or publication of
ABSTRACTdoctrine or academic theory having no propensity to INCITEconcrete action.” It found that Gitlow’s publications used language advo-cating, advising, or teaching the overthrow of organized government by unlawful means, and that such languageIMPLIEDan urging to action
The Court reasoned that revolutionary actions called for in Gitlow’s publications, including mass industrial uprisings and political mass strikes, implied the use of force and violence Such actions are inherently unlawful
in a democratic system of government It ruled that freedom of expression does not grant an individual the ABSOLUTE right to speak or publish, nor does it offer unqualifiedIMMUNITY
from punishment for every possible utterance
or publication The state, in the exercise of its police power, is allowed to punish anyone who abuses the FREEDOM OF SPEECH and press by utterances that are adverse to the public
WELFARE, tend to corrupt public morals, incite
to crime, or breach the public peace As part of its primary and essential right of self-preserva-tion, a state can penalize any expression that imperils the foundations of organized govern-ment and threatens its overthrow by unlawful means The Court cautioned, however, that enforcement of state statutes cannot be arbitrary
or unreasonable
In subsequent cases (for example, Branden-burg v Ohio, 395 U.S 444, 89 S Ct 1827, 23 L
Ed 2d 430[1969]; Hess v Indiana, 414 U.S 105,
94 S Ct 326, 30 L Ed 2d 303 [1973]), the Court rejected the “dangerous tendency” doc-trine it formulated in Gitlow, that incitement to action is implicit in utterances that advocate unlawful acts The Court subsequently held that states may only prohibit utterances that directly incite lawless action or advocate individuals to imminently take lawless action
FURTHER READINGS Levinson, Nan 2006 Outspoken: Free Speech Stories.
Berkeley: Univ of California Press.
The Oyez Project Web site Gitlow v New York, 268 U.S 652 (1925) Available online at http://www.oyez.org/cases/
1901-1939/1922/1922_19; website home page: http://
www.oyez.org (accessed September 4, 2009).
Tedford, Thomas L., and Dale A Herbeck 2009 Freedom of Speech in the United States State College, PA: Strata.
CROSS REFERENCES Anarchism; Communism; Due Process of Law; Incorpo-ration Doctrine.
GITLOW V NEW YORK 103
Trang 7vGLANVILL, RANULF English COMMON LAW developed partly in response to the pioneering work of RANULF GLANVILL As chief justiciar, Glanvill was the legal and financial minister of England under Henry
II He is commonly associated with the first important treatise on practice and procedure
in the king’s courts: Tractatus de legibus et consuetudinibus regni Angliae (Treatise on the laws and customs of the realm of England)
Historians agree that Glanvill is probably not the author of the Tractatus, which first appeared circa 1188, but he is thought to have been instrumental in its creation Early U.S law owes much to ENGLISH LAW, which became greatly simplified and available to common people during Glanvill’s tenure
Glanvill was probably born at Stratford
St Andrew, near Saxmundham, Suffolk, Eng-land Although few details are known about his life, it is recorded that he had bumpy political fortunes He was sheriff of Yorkshire from 1163
to 1170, but lost his authority following an official inquiry into the corruption of sheriffs
He regained it by helping raise troops against Scottish invaders in 1173–74, and his reward from King Henry II was a series of increasingly important appointments: justice of the king’s court, itinerant justice in the northern circuit, and ambassador to the court in Flanders In
1180, Glanvill’s ascent to power seemed com-plete when he became legal and financial minister, but a new king, Richard I, threw him in prison He ransomed his way out, and then died of illness on a Crusade at Acre, in what is now Israel, in 1190
For a few centuries before Glanvill became influential, English law was mired in FEUDALISM Under this political and military system, justice was administered in crude forms: trial by
combat, which operated under the assumption that God would favor the righteous party, and trial by ordeal, which, in one of its forms, posed the question of innocence as a test of whether a person’s wounds could heal within three days
By the twelfth century, feudalistic law was dying The local courts still adhered to its methods, but the king’s courts offered a super-ior form of justice that was at once less bloody and less superstitious This was a writ-based, or formulary, system It allowed litigants to frame
a complaint in terms of a particular action, which had its own WRITand established modes
of PLEADING and trial Although primitive by modern standards, the formulary system repre-sented a considerable advance for its time But such justice was chiefly available to great lords; commoners had to resort to the local courts
As chief justiciar, Glanvill sought to extend the benefits of the king’s courts to ordinary people He accomplished this through a system
of itinerant royal justices, and the results revolutionized English legal procedure As the feudal forms fell into disuse, they were replaced with a dominant system of central courts that followed uniform procedure throughout the realm and made English law simpler and better The Tractatus played a crucial role in this improvement In fourteen books, it covered each of the eighty distinct writs used in the king’s courts One important writ, for example, was the grand ASSIZE, a procedure for settling land disputes that replaced the feudal practice of battle with a form of jury system The treatise offered this commentary on its value: “It takes account so effectively of both human life and civil condition that all men may preserve the rights which they have in any free tenement, while avoiding the doubtful outcome of battle
In this way, too, they may avoid the greatest of
c.1130 Born,
Stratford St.
Andrew,
Suffolk,
England
1154–89 Reign
of King Henry II
1189–99 Reign
of Richard I 1135–54 Reign
of King Stephen
1163–70 and 1173–74 Served as sheriff of Yorkshire
◆
1180 Appointed chief justiciar of England
◆
1188
Tractatus
first appeared
1190 Died, on Crusade, at Acre in what is now Israel
1189 Richard I threw Glanvill in prison; he ransomed his way out and went on Crusade
CONSTITUTION IS
BASED ABOVE ALL ON
SELDOM ARRIVED AT
MORE EASILY AND
QUICKLY ATTAINED
—R ANULF G LANVILL
104 GLANVILL, RANULF
Trang 8all punishments, unexpected and untimely
death.” As with other writs, the Tractatus
painstakingly spelled out how the grand assize
worked Directed at practitioners of law, the
Tractatus sought to encourage them to adopt
these new“royal benefit[s] granted to the people
by the goodness of the king.”
The simplicity and clarity of the Tractatus
helped lead England to a common law
Although records from the period associate
Glanvill with the treatise, scholars believe he is
unlikely to have written it The real author may
have been his nephew, Hubert Walter, who was
the archbishop of Canterbury, or even a later
justiciar, Geoffrey Fitzpeter However, its
au-thorship is of secondary importance to its effect
Besides encouraging the spread of unified
procedure, it provided the foundation for later
classics, in particular Henry de Bracton’s
thirteenth-century treatise on English law and
custom, De legibus et consuetudinibus Angliae
FURTHER READINGS
Beames, John 1900 A Translation of Glanville Washington,
D.C.: John Byrne.
de Glanvill, Ranulf 1996 Tractatus de legibus et
consuetu-dinibus regni Angliae English translation available
at http://www.vi.uh.edu/pages/bob/elhone/glanvill.html;
web site home page: http://www.vi.uh.edu (accessed on
July 26, 2009).
Scrutton, Thomas Edward 1885 The Influence of the
Roman Law on the Law of England Cambridge, U.K.:
Cambridge Univ Press.
GLASS-STEAGALL ACT
The Glass-Steagall Act, also known as the
Banking Act of 1933 (48 Stat 162), was passed
by Congress in 1933 and prohibits commercial
banks from engaging in the investment business
It was enacted as an emergency response to
the failure of nearly 5,000 banks during the
Great Depression The act was originally part of
President Franklin D Roosevelt’s NEW DEAL
program and became a permanent measure in
1945 It gave tighter regulation of national
banks to the Federal Reserve System; prohibited
bank sales ofSECURITIES; and created theFEDERAL
DEPOSIT INSURANCE CORPORATION (FDIC), which
insures bank deposits with a pool of money
appropriated from banks
Beginning in the 1900s, commercial banks
established security affiliates that floated bond
issues and underwrote corporate stock issues
(In underwriting, a bank guarantees to furnish a
definite sum of money by a definite date to a
business or government entity in return for an issue of bonds or stock.) The expansion of commercial banks into securities underwriting was substantial until the 1929 STOCK MARKET
crash and the subsequent Depression In 1930 theBANK OF THE UNITED STATESfailed, reportedly because of activities of its security affiliates that created artificial conditions in the market In
1933 all of the banks throughout the country were closed for a four-day period, and 4,000 banks closed permanently
As a result of the bank closings and the already devastated economy, public confidence
in the U.S financial structure was low In order
to restore the banking public’s confidence that banks would follow reasonable banking prac-tices, Congress created the Glass-Steagall Act
The act forced a separation of commercial and investment banks by preventing commercial banks from underwriting securities, with the exception of U.S Treasury and federal agency securities, and municipal and state general-obligation securities More specifically, the act authorizes Federal Reserve banks to use government obligations andCOMMERCIAL PAPER
as collateral for their note issues, in order to encourage expansion of the currency Banks also may offer advisory services regarding investments for their customers, as well as buy and sell securities for their customers
However, information gained from providing such services may not be used by a bank when
it acts as a lender Likewise, investment banks may not engage in the business of receiving deposits
A group of congressmen look on
as President Franklin
D Roosevelt signs the Glass-Steagall Act
on June 16, 1933 Senators Carter Glass (light suit) and Henry
S Steagall stand on either side of the president.
BETTMANN/CORBIS.
GLASS-STEAGALL ACT 105
Trang 9A bank is defined as an institution organized under the laws of the United States, any state of the United States, the District of Columbia, any territory of the United States, Puerto Rico, Guam, American Samoa, or the Virgin Islands, that both accepts demand deposits (deposits that the depositor may withdraw by check or similar means for payment to third parties or others) and is engaged in the business of making commercial loans (12 U.S.C.A § 1841 (c)(1) [1988]) Investment banking consists mostly of securities underwriting and related activities; making a market in securities; and setting up corporate mergers, acquisitions, and restructuring Investment banking also includes services provided by brokers or dealers in transactions in the secondary market A sec-ondary market is one where securities are bought and sold subsequent to their original issuance
Despite attempts to reform Glass-Steagall, the legislature has not passed any major changes—although it has passed bills that relax restrictions Banks may now set up brokerage subsidiaries, and UNDERWRITEa limited number
of issues such as asset-backed securities, corpo-rate bonds, and commercial paper
The Glass-Steagall Act restored public confidence in banking practices during the Great Depression However, many historians believe that the commercial bank securities practices of the time had little actual effect on the already devastated economy and were not a major contributor to the Depression Some legislators and bank reformers argued that the act was never necessary, or that it had become outdated and should be repealed
Congress responded to these criticisms in passing the Gramm-Leach-Bilely Act of 1999, which made significant changes to Glass-Steagall The 1999 law did not make sweeping changes in the types of business that may be conducted by an individual bank, broker-dealer or insurance company Instead, the act repealed the Glass-Steagall Act’s restric-tions on bank and securities-firm affiliarestric-tions
It also amended the Bank HOLDING COMPANY
Act to permit affiliations among financial services companies, including banks, securi-ties firms and insurance companies The new law sought financial modernization by re-moving the very barriers that Glass-Steagall had erected
FURTHER READINGS Cintron, Ivan 1995 “Bankers Hope Reform Helps Shatter Glass ” Nashville Business Journal (September 4) Class, Edgar 1995 “The Precarious Position of the Federal Deposit Insurance Corporation after O ’Melveny and Myers v FDIC ” Administrative Law Journal of the American Univ (summer).
Eaton, David M 1995 “The Commercial Banking-related Activities of Investment Banks and Other Nonbanks ” Emory Law Journal 44 (summer).
Feibelman, Adam 1996 “The Dukes of Moral Hazard.” Memphis Business Journal (July 1).
Smoot, James R 1996 “Financial Institutions Reform in the Wake of Valic.” Creighton Law Review (February) Sullivan, Edward D 1995 “Glass-Steagall Update: Proposals
to Modernize the Structure of the Financial Services Industry ” Banking Law Journal 112 (November– December).
“U.S Bank Law Overhaul Not Provoking Big Changes— Meyer ” 2001 Reuters Business Report (February 15) Woelful, Charles J 1994 Encyclopedia of Banking and Finance 10th ed New York: McGraw-Hill.
CROSS REFERENCES Banks and Banking; Federal Reserve Board; Glass, Carter.
vGLASS, CARTER Carter Glass sponsored important banking laws
of the twentieth century, among them the Glass-Steagall Acts of 1932 and 1933 (48 Stat 162)
He wrote and sponsored the legislation that established the Federal Reserve System in 1913
He was also a key player in making amendments
to the system during the decades following its establishment A Virginia Democrat, he served as secretary of the treasury under Woodrow Wilson and was a member of the House of Representa-tives and the Senate
Glass was born January 4, 1858, in Lynch-burg, Virginia, the youngest of twelve children His mother, Augusta Christian Glass, died when
he was two years old, and Glass was raised by a sister ten years older than he His father, Robert
H Glass, was the editor of the Daily Republic Following the Civil War, Glass’s father turned down an offer of reappointment to his old position as postmaster general, because he did not want to be on the payroll of the nation
he had just fought Having lived through a financially strapped childhood during the Re-construction period, Glass would as an adult consistently oppose strong centralized control by the federal government except in emergencies Glass left school at age 14 to begin a printer’s apprenticeship at his father’s paper He com-pleted his apprenticeship in 1876 when the
106 GLASS, CARTER
Trang 10family moved to Petersburg, Virginia Glass soon
moved back to Lynchburg to work as an auditor
for the railroad In 1880 he became the city editor,
and then the editor, of the Lynchburg News With
savings and the financial backing of friends, he
purchased that newspaper in 1888 The same year
he married Aurelia McDearmon Caldwell, a
teacher In the early 1890s Glass bought and
consolidated other Lynchburg newspapers
In 1899 Glass was elected to the Virginia
state senate, where he was put on the committee
of finance and banking During his career as a
state legislator, he was an active debater on
suffrage for African Americans, the subject of
the Fourteenth and Fifteenth Amendments to
the U.S Constitution He supported restricting
voting rights for illiterate former slaves on the
theory that these votes were used by those in
power to maintain their power He also argued
in defense of the EIGHTEENTH AMENDMENT,
prohibiting the sale of alcohol In 1933,
however, he voted for its appeal on the grounds
that it was futile to maintain a law that could
not be enforced
In 1902 Glass was elected to the U.S House
of Representatives, where he served until 1918
In 1904 he was appointed to the Banking and
Currency Committee He devoted the next
several years to studying the topic of banking,
and introduced few bills during this period
The U.S banking system of the late
nine-teenth and early twentieth centuries was unstable,
leading to a series of banking panics over a
34-year span By the end of the nineteenth century,
banks were largely independent from, and often
in competition with, one another The relatively
young U.S banking system was burdened
primarily with a lack of flexibility in lending (or
rediscounting) policies and currency availability,
as well as weak supervision and inadequate check collection systems
In the first decade of the twentieth century, Glass began crafting a bill to address the need for banking reform In 1912WOODROW WILSON
was elected PRESIDENT OF THE UNITED STATES Glass, now chair of the House Banking Com-mittee, enlisted and got Wilson’s support for his reform bill
The Federal Reserve Act, 12 U.S.C.A § 221 et seq., the most radical banking reform bill in U.S
history, was passed into law December 23, 1913
In presenting his bill to the House, Glass said in his closing remarks, “I have tried to reconcile conflicting views, to compose all friction and technical knowledge of the banker, the wisdom
of the philosopher, and the rights of the people.”
According to its preamble, Glass’s bill was created to “provide for the establishment of
Carter Glass.
AP IMAGES
❖
1858 Born,
Lynchburg,
Va.
1861–65 U.S Civil War
◆
1872 Left school to apprentice at father's newspaper
◆
1880 Became city editor of the
Lynchburg News
◆
1888 Bought the
Lynchburg News
◆
1899 Elected to
Va state senate
1904 Appointed to House Banking and Currency Committee
1913 Federal Reserve Act passed
1914–18 World War I
◆
◆
1902–18 Served in U.S House
1918–20 Served as U.S secretary
of the treasury
◆
1927
Adventures in Constructive Finance
published
1939–45 World War II
❖
1946 Died, Washington, D.C.
1932–33 Glass-Steagall Acts liberalized borrowing terms for Federal Reserve member banks and established FDIC 1920–46 Served in U.S Senate GLASS, CARTER 107